Summary
rejecting the application of People v. Stamps 9 Cal.5th 685 to Assembly Bill 1950
Summary of this case from People v. RomandiaOpinion
A157857
04-07-2021
The PEOPLE, Plaintiff and Respondent, v. Steven Matthew STEWART, Defendant and Appellant.
Kaiya R. Pirolo, Walnut Creek, by Appointment of the Court of Appeal First District Appellate Project, for Appellant. Xavier Becerra Lance E. Winters Chief Assistant Attorney General Jeffrey M. Laurence Senior Assistant Attorney General Rene A. Chacon Supervising Deputy Attorney General Julia Y. Je Deputy Attorney General, for Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts I. Discussion, I.A., and I.B.
Kaiya R. Pirolo, Walnut Creek, by Appointment of the Court of Appeal First District Appellate Project, for Appellant.
Xavier Becerra Lance E. Winters Chief Assistant Attorney General Jeffrey M. Laurence Senior Assistant Attorney General Rene A. Chacon Supervising Deputy Attorney General Julia Y. Je Deputy Attorney General, for Respondent.
Kline, P.J. Steven Matthew Stewart was placed on probation after pleading no contest to one count of assault by means likely to result in great bodily injury. He contends the trial court abused its discretion in imposing a probation condition requiring him to refrain from using marijuana, a condition appellant sees as unrelated to his offense or future criminality. He further contends his period of probation must be reduced from three years to two years in accordance with a statutory amendment enacted while this appeal was pending. We agree that appellant is entitled to this reduction in the length of his probation period and otherwise affirm the judgment.
BACKGROUND
Napa County Police Officer Colton Adams testified at the preliminary hearing that on March 25, 2019, he was dispatched to an unrelated incident and flagged down by J.R., who told him she had just been assaulted by her ex-boyfriend, identified as appellant. J.R.’s hands were "fidgety," she "wasn't able to stop moving" and she "seemed hysterical" and appeared to have been crying. She said she and appellant had been arguing and appellant threatened to "bash her face in using his head," then as the argument continued, he "headbutted her in the face." Adams did not notice visible injuries, but J.R. reported that she felt pain. Adams did not have an opinion whether J.R. was high on methamphetamine.
As described in the probation report, the police report related appellant having said J.R. was "high on methamphetamine."
A witness told Adams that as appellant and J.R. were arguing, appellant threatened to "beat her down," then attempted to punch her in the face with his left hand, missed the punch, and immediately headbutted her in the face. Another witness saw appellant suddenly headbutt J.R. as appellant and J.R. were arguing.
Appellant told Adams that he and J.R. were currently dating and had a five-year-old daughter together. He denied any physical altercation, saying the argument was all verbal. Appellant told Adams he and J.R. had been arguing for the past few days and, on the day of the incident, J.R. threatened to "put him in jail, because he needed to go to a program." He said he wanted her to go to a program with him. Adams testified that appellant was cooperative and calm.
Appellant was initially charged on March 27, 2019, with one count of felony making criminal threats ( Pen. Code, § 422 ) and one count of misdemeanor battery (domestic violence) (§ 243, subd. (e)(1)), with an allegation that appellant had a prior conviction for which he served a prison term (§ 667.5, subd. (b).) Following a preliminary hearing, appellant was held to answer, an information was filed stating the same charges, and appellant pled not guilty and denied the special allegations. Subsequently, an amended information added a third count of felony assault by means likely to cause great bodily injury (§ 245, subd. (a)). Pursuant to a negotiated agreement, appellant pled no contest to the third count and the others were dismissed with a Harvey waiver. On July 15, 2019, in accordance with the agreement, appellant was placed on probation for three years. The court imposed the terms and conditions recommended by the probation department, with a few modifications not relevant here.
Further statutory references are to the Penal Code unless otherwise indicated.
People v. Harvey (1979) 25 Cal.3d 754, 159 Cal.Rptr. 696, 602 P.2d 396.
This appeal followed. DISCUSSION
Appellant filed a notice of appeal on the day he was sentenced, July 15, 2019, but did not request a certificate of probable cause. In December, he filed a motion in this court for permission to request a late certificate of probable cause, which we granted over respondent's opposition. Appellant filed an amended notice of appeal and request for a certificate of probable cause in the trial court on January 2, 2020, and the trial court granted the certificate of probable cause the same day.
I.
At sentencing, defense counsel objected to imposition of the marijuana condition, arguing there was no indication drugs or alcohol were involved in the offense. On appeal, appellant contends the trial court abused its discretion in imposing this condition because it addresses conduct that is not illegal and is not reasonably related either to the offense or to future criminality. Two questions are presented: whether appellant can maintain this challenge to the probation condition after waiving his right to appeal as part of his plea bargain and, if so, whether the condition was properly imposed.
See footnote *, ante .
II.
As earlier indicated, in accordance with his plea agreement, appellant was placed on probation for a period of three years. At the time, the trial court had discretion to order probation "for a period of time not exceeding the maximum possible term of the sentence" or, where the maximum possible term was five years or less, for a maximum of five years. (Former § 1203.1, subd. (a).) While this appeal was pending, the Legislature enacted Assembly Bill No. 1950 (Assembly Bill 1950), amending section 1203.1, subdivision (a), to limit felony probation to a maximum term of two years, absent circumstances not applicable here. (Stats. 2020, ch. 328, § 2, eff. Jan. 1, 2021.) The legislation is silent as to retroactivity, but appellant argues it is ameliorative and therefore applies to his case pursuant to the reasoning of In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 ( Estrada ). A.
Appellant first raised this claim in a petition for rehearing after we filed an opinion affirming his conviction, arguing rehearing was required to preserve his constitutional right to effective assistance of counsel and forestall a petition for writ of habeas corpus based on ineffective assistance of counsel. Assembly Bill 1950 was signed by the Governor on September 30, 2020, the day after appellant's attorney filed the reply brief on this appeal. Counsel did not seek leave of court to file a supplemental brief arguing appellant was entitled to the shortened period of probation. (Cal. Rules of Court, rule 8.200(a)(4).) We granted rehearing to permit consideration of this claim.
"Generally, statutes are presumed to apply only prospectively. ( [People v. Superior Court (Lara) (2018)] 4 Cal.5th [299,] 307 [228 Cal.Rptr.3d 394, 410 P.3d 22].) However, this presumption is a canon of statutory interpretation rather than a constitutional mandate. ( Ibid. ) Accordingly, ‘the Legislature can ordinarily enact laws that apply retroactively, either explicitly or by implication.’ ( Ibid. ) Courts look to the Legislature's intent in order to determine if a law is meant to apply retroactively. ( Ibid. )" ( People v. Frahs (2020) 9 Cal.5th 618, 627, 264 Cal.Rptr.3d 292, 466 P.3d 844 ( Frahs ).)
Estrada held that "amendatory statutes that lessen the punishment for criminal conduct are ordinarily intended to apply retroactively." ( Frahs, supra, 9 Cal.5th at p. 627, 264 Cal.Rptr.3d 292, 466 P.3d 844.) The Estrada court reasoned that " ‘[w]hen the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply.’ " ( Frahs , at pp. 627–628, 264 Cal.Rptr.3d 292, 466 P.3d 844.) " ‘ Estrada stands for the proposition that, "where the amendatory statute mitigates punishment and there is no saving[s] clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed." ’ " ( Id. at p. 628, 264 Cal.Rptr.3d 292, 466 P.3d 844, quoting People v. Nasalga (1996) 12 Cal.4th 784, 792, 50 Cal.Rptr.2d 88, 910 P.2d 1380.)
Respondent argues Estrada does not apply to Assembly Bill 1950 because probation is not punishment. Several recent cases have rejected this view. ( People v. Sims (2021) 59 Cal.App.5th 943, 273 Cal.Rptr.3d 792 ( Sims ); People v. Quinn (2021) 59 Cal.App.5th 874, 273 Cal.Rptr.3d 770 ( Quinn ); People v. Burton (2020) 58 Cal.App.5th Supp. 1, 272 Cal.Rptr.3d 797 ( Burton ) [Assem. Bill 1950 limitation on duration of misdemeanor probation].) As explained in those opinions, while probation is viewed as " ‘an act of clemency in lieu of punishment’ " and primarily "rehabilitative in nature" ( People v. Moran (2016) 1 Cal.5th 398, 402, 205 Cal.Rptr.3d 491, 376 P.3d 617 ), probation "can be invasive, time-consuming, and restrictive for a probationer" ( Sims, at p. 959, 273 Cal.Rptr.3d 792 ), who may be subjected to numerous conditions, including restrictions on activities and associations that would otherwise be lawful and requirements such as drug and/or alcohol testing, meetings with probation officers, and submission to warrantless searches and seizures. The probationer " ‘is in constructive custody—he is under restraint’ [citations]" and " ‘there is no question it is a sanction that imposes significant restrictions on the civil liberties of a defendant.’ [Citations].)" ( Ibid. ) The California Supreme Court recognized in People v. Edwards (1976) 18 Cal.3d 796, 801, 135 Cal.Rptr. 411, 557 P.2d 995, that "the traditional view that a grant of probation is a privileged act of grace or clemency has been discredited in favor of the modern view that such a grant should be deemed an alternative form of punishment in those cases when it can be used as a correctional tool." And People v. Delgado (2006) 140 Cal.App.4th 1157, 1170, 45 Cal.Rptr.3d 501, viewed probation as punishment in holding that retroactive application of a law imposing mandatory probation conditions, including a minimum term, increased punishment in violation of ex post facto principles. (See also, People v. Williams (1988) 200 Cal.App.3d Supp. 1, 246 Cal.Rptr. 464 [retroactive application of law extending maximum length of probation period unconstitutionally increased punishment].)
By limiting the maximum duration of probation, Assembly Bill 1950 has "a direct and significant ameliorative benefit for at least some probationers who otherwise would be subject to additional months or years of potentially onerous and intrusive probation conditions." ( Sims, supra, 59 Cal.App.5th at 959, 273 Cal.Rptr.3d 792.) Shortening the length of probation terms is also ameliorative in that it reduces the "potential for the [probationer] to be incarcerated due to a violation." ( Burton, supra, 58 Cal.App.5th Supp. at p. 15, 272 Cal.Rptr.3d 797.) Probation violations—which may be based on conduct not amounting to a new crime and need only be proven by a preponderance of the evidence—often result in incarceration. ( Sims, at p. 960, 273 Cal.Rptr.3d 792.) The longer the period of probation, the more likely the probationer will be found in violation of a probation condition. Conversely, by limiting the duration of probation, Assembly Bill 1950 ameliorates possible punishment for probationers as a class by "ensur[ing] that at least some probationers who otherwise would have been imprisoned for probation violations will remain violation free and avoid incarceration." ( Sims, at p. 960, 273 Cal.Rptr.3d 792.)
This view of Assembly Bill 1950 is in keeping with the California Supreme Court's application of the Estrada principle to legislation that makes reduced punishment possible, as well as that which directly reduces technical punishment. Lara , supra , 4 Cal.5th 299, 228 Cal.Rptr.3d 394, 410 P.3d 22, applied Estrada in its analysis of Proposition 57, which eliminated prosecutors’ discretion to charge juveniles in adult court, instead requiring a transfer hearing for the juvenile court to determine whether the matter should be heard in juvenile or adult court. Although "Proposition 57 does not reduce the punishment for a crime," Lara held Estrada ’s "rationale" applied because "[t]he possibility of being treated as a juvenile in juvenile court—where rehabilitation is the goal—rather than being tried and sentenced as an adult can result in dramatically different and more lenient treatment." ( Lara, at p. 303, 228 Cal.Rptr.3d 394, 410 P.3d 22.) The "possible" reduction of punishment was also the focus in Frahs, supra, 9 Cal.5th 618, 264 Cal.Rptr.3d 292, 466 P.3d 844, which found retroactive a statute creating a pretrial diversion program for certain defendants with mental health disorders. Likening the case to Lara, the court stated that the statute "provides a possible ameliorating benefit for a class of persons—namely, certain defendants with mental disorders—by offering an opportunity for diversion and ultimately the dismissal of charges." ( Frahs , at p. 624, 264 Cal.Rptr.3d 292, 466 P.3d 844 ; People v. Francis (1969) 71 Cal.2d 66, 75 Cal.Rptr. 199, 450 P.2d 591 [amendment allowing trial court to exercise sentencing discretion more favorably for individual defendants applied retroactively].)
We agree with the Sims , Quinn , and Burton courts that Assembly Bill 1950 ameliorates punishment within the meaning of Estrada. Although the Legislature could have chosen to limit or forbid the retroactive application of the amendment ( People v. Conley, (2016) 63 Cal.4th 646, 656, 203 Cal.Rptr.3d 622, 373 P.3d 435 ), it did not do so. Assembly Bill 1950 contains no express requirement that it be applied only prospectively, and, like the Sims, Quinn, and Burton courts, we see no indication of such intent in the legislative history.
To the contrary, the legislative history demonstrates that the amendment was motivated by concerns that apply to current probationers as much as future ones. As extensively detailed in the Sims, Quinn, and Burton opinions, the legislative analyses of Assembly Bill 1950 reflect concern with the social and financial costs of the existing probation system—in particular, with probation as "a pipeline for re-entry into the carceral system" due to the large number of people incarcerated for violations of probation, most of which are " ‘technical’ and minor in nature." (Assem. Floor Analysis, 3d reading of Assem. Bill 1950 (2019-2020 Reg. Sess.) as amended May 21, 2020, p. 1.) The legislative analyses further address the apparent absence of need for longer probation periods with regard to rehabilitation. "Research (https://calbudgetcenter.org/resources/sentencing-in-californiamoving-toward-a-smarter-more-cost-effective-approach/) by the California Budget & Policy Center shows that probation services, such as mental healthcare and addiction treatment, are most effective during the first 18 months of supervision. Research also indicates that providing increased supervision and services earlier reduces an individual's likelihood to recidivate." (Assem. Floor Analysis, 3d reading of Assem. Bill 1950 (2019-2020 Reg. Sess.) as amended June 10, 2020, p. 1.)
According to the bill's author, "California's adult supervised probation population is around 548,000—the largest of any state in the nation, more than twice the size of the state's prison population, almost four times larger than its jail population and about six times larger than its parole population. [¶] A 2018 Justice Center of the Council of State Governments study (< https://csgjusticecenter.org/publications/confined-costly/?state=CA#primary> [as of Apr. 7, 2021]) found that a large portion of people violate probation and end up incarcerated as a result. The study revealed that 20% of prison admissions in California are the result of supervised probation violations, accounting for the estimated $2 billion spent annually by the state to incarcerate people for supervision violations. Eight percent of people incarcerated in a California prison are behind bars for supervised probation violations. Most violations are ‘technical’ and minor in nature, such as missing a drug rehab appointment or socializing with a friend who has a criminal record." (Assem. Floor Analysis, 3d reading of Assem. Bill 1950 (2019-2020 Reg. Sess.) as amended May 21, 2020, p. 1.) Additionally, the Prison Policy Institute has found that "like incarceration, probation affects already marginalized populations in troubling ways. Black Americans make up 13% of the U.S. adult population, but 30% of those under community supervision." Additionally, probation fees are an enormous burden on the poor. (Sen. Com. on Public Safety, Rep. on Assem. Bill 1950 (2019-2020 Reg. Sess.) as amended June 10, 2020, p. 4.)
It is apparent that the Legislature determined the rehabilitative purpose of probation could best be met, and deleterious effects of the probation system minimized, by shortening the maximum duration of probation. As stated by the Sims court, "[w]hile these legislative materials do not speak directly to the issue of retroactivity, they suggest the Legislature viewed Assembly Bill No. 1950 as an ameliorative change to the criminal law that would ensure that many probationers avoid imprisonment. Presumably, the Legislature was aware such ameliorative changes apply retroactively under the Estrada presumption. (See People v. Carrasco (1981) 118 Cal.App.3d 936, 945 [‘A cardinal principle of statutory construction is that the Legislature is presumed to be aware of existing judicial practices and interpretations when it enacts a statute.’].) There is no indication in the law's text or legislative materials that the Legislature intended to alter the default Estrada presumption. This omission suggests the Legislature had no such intent." ( Sims, supra, 59 Cal.App.5th at pp. 962–963, 273 Cal.Rptr.3d 792.)
B.
This case presents one issue not addressed in Sims, Quinn, or Burton. While appellant asks us to order that his term of probation be reduced to two years, respondent maintains we cannot do so because the prosecution must be given an opportunity to either agree to this new term or withdraw from the plea agreement pursuant to which probation was imposed. Respondent's argument is based on the rule that a court lacks authority to unilaterally modify a plea bargain after it has been accepted. ( People v. Stamps (2020) 9 Cal.5th 685, 700–702, 264 Cal.Rptr.3d 769, 467 P.3d 168.)
Stamps held that Senate Bill No. 1393 (Senate Bill 1393), amending section 667, subdivision (a), to give trial courts discretion to strike the five-year prior serious felony conviction enhancement, applied to the defendant's case retroactively because the judgment was not yet final. ( Stamps, supra, 9 Cal.5th at p. 699, 264 Cal.Rptr.3d 769, 467 P.3d 168.) The Supreme Court held the case should be remanded for the trial court to exercise its discretion, but rejected the defendant's argument that the trial court should consider striking the enhancement while otherwise leaving his plea bargain intact. ( Stamps, at p. 700, 264 Cal.Rptr.3d 769, 467 P.3d 168.) " ‘ " ‘A plea agreement is, in essence, a contract between the defendant and the prosecutor to which the court consents to be bound.’ [Citations.] Should the court consider the plea bargain to be unacceptable, its remedy is to reject it, not to violate it, directly or indirectly. [Citation.] Once the court has accepted the terms of the negotiated plea, ‘[it] lacks jurisdiction to alter the terms of a plea bargain so that it becomes more favorable to a defendant unless, of course, the parties agree.’ " ’ " ( Id. at p. 701, 264 Cal.Rptr.3d 769, 467 P.3d 168, quoting People v. Cunningham (1996) 49 Cal.App.4th 1044, 1047, 57 Cal.Rptr.2d 179.) Accordingly, Stamps held the proper remedy was remand to allow the defendant to seek relief under Senate Bill 1393. If the trial court declined to exercise its discretion to strike the enhancement, the prior sentence would stand. If the court was inclined to exercise its discretion, the prosecution could agree to modify the plea bargain, but if it did not so agree, the prosecutor could withdraw from the agreement. The court could also withdraw its prior approval of the plea agreement. ( Stamps, at pp. 707–708, 264 Cal.Rptr.3d 769, 467 P.3d 168.)
A different conclusion was reached in People v. France (2020) 58 Cal.App.5th 714, 272 Cal.Rptr.3d 689 ( France ) (review granted Feb. 24, 2021, S266771), which found retroactive Senate Bill No. 136 (Senate Bill 136), amending section 667.5, subdivision (b), to limit its one-year prior prison term enhancement to prior prison terms for sexually violent offenses. (See also People v. Andahi (Mar. 19, 2021, C090707) 62 Cal.App.5th 203, 276 Cal.Rptr.3d 526.) Prior to amendment, the statute required courts to impose the enhancement for each prior prison term, although courts could exercise their discretion to strike the enhancement pursuant to section 1385. ( France , at p. 718, 272 Cal.Rptr.3d 689.) Since the defendant's prior prison term enhancement was not for a sexually violent offense and his conviction was not final, he was entitled to relief. ( Id. at pp. 718–721, 272 Cal.Rptr.3d 689.) But, unlike Stamps , France found it appropriate to modify the judgment by striking the one-year enhancement despite the sentence having been imposed pursuant to a plea bargain. ( France , at pp. 727–730, 272 Cal.Rptr.3d 689.)
For the France majority, the critical factor distinguishing Stamps was that Senate Bill 1393, at issue in Stamps , gave the trial court discretion to strike an enhancement while Senate Bill 136 "reduc[ed] sentences directly by significantly narrowing the scope of an enhancement." ( France, supra, 58 Cal.App.5th at p. 728, 272 Cal.Rptr.3d 689.) Under Senate Bill 1393, "it is ultimately a trial court that chooses whether an enhancement is eliminated—meaning that [the change in law] directly implicates the prohibition on a trial court's ability to unilaterally modify an agreed-upon sentence." ( France, at p. 728, 272 Cal.Rptr.3d 689.) In Senate Bill 136, by contrast, "the Legislature itself has mandated the striking of affected prison priors by making the enhancement portion of France's sentence illegal." ( France, at pp. 728–729, 272 Cal.Rptr.3d 689.)
Additionally, while Stamps found that applying Senate Bill 1393 to plea-bargained sentences but otherwise preserving the plea agreement would have been contrary to the purpose of the legislation, France concluded the opposite was true for Senate Bill 136. Prior to Senate Bill 1393, trial courts generally had discretion to strike sentence enhancements pursuant to section 1385, but section 667, subdivision (a), prohibited exercising that discretion with respect to serious felony conviction enhancements. Senate Bill 1393 eliminated that prohibition in order to create uniformity in sentencing discretion. Stamps explained that because courts do not have discretion to strike enhancements that are part of an approved plea bargain, allowing a court to modify a plea bargain involving a serious felony conviction enhancement would undermine the goal of uniformity by elevating these enhancements over others. ( Stamps, supra, 9 Cal.5th at pp. 702, 704, 264 Cal.Rptr.3d 769, 467 P.3d 168 ; France, supra, 58 Cal.App.5th at p. 729, 272 Cal.Rptr.3d 689.) France concluded that preventing application of Senate Bill 136 to plea-bargained sentences "would thwart or delay the full achievement of the Legislature's intent to reduce the expense and ineffectiveness of enhanced prison sentences based on prior prison terms, especially given that pleas of guilty or no contest ‘represent the vast majority of felony and misdemeanor dispositions in criminal cases.’ " ( France , at p. 728, 272 Cal.Rptr.3d 689, quoting In re Chavez (2003) 30 Cal.4th 643, 654, fn. 5, 134 Cal.Rptr.2d 54, 68 P.3d 347.)
Respondent urges us to adopt the reasoning of Justice Pollak's dissent in France, which concluded the majority misapplied Stamps. Justice Pollak focused on the absence of indication in Senate Bill 136 that the Legislature "intended ‘to change well-settled law that a court lacks discretion to modify a plea agreement unless the parties agree to the modification.’ " ( France, supra, 58 Cal.App.5th at p. 734, 272 Cal.Rptr.3d 689 (dis. opn. of Pollak, J.), quoting Stamps, supra, 9 Cal.5th at p. 702, 264 Cal.Rptr.3d 769, 467 P.3d 168.) Rejecting the majority's reliance on the fact that Senate Bill 136 mandated striking the defendant's enhancement, Justice Pollak stated that "the reduction of the agreed four-year term to three years without the prosecutor's consent would be no less unilateral than if striking the enhancement had been within the court's discretion. It was not the fact that striking the enhancement in Stamps was discretionary that would have rendered automatic reduction of the sentence unilateral and impermissible; that outcome was precluded because the prosecution, which had agreed to a nine-year sentence, had not agreed to any lesser sentence." ( France, at p. 734, 272 Cal.Rptr.3d 689.) Justice Pollak's view is consistent with several recent cases addressing Senate Bill 136. ( People v. Hernandez (2020) 55 Cal.App.5th 942, 269 Cal.Rptr.3d 824 ( Hernandez ), review granted Jan. 27, 2021, S265739; People v. Griffin (2020) 57 Cal.App.5th 1088, 272 Cal.Rptr.3d 170, review granted Feb. 17, 2021, S266521; People v. Joaquin (2020) 58 Cal.App.5th 173, 272 Cal.Rptr.3d 267, review granted Feb. 24, 2021, S266594.)
As applied to the issues in the present case, we find the analysis of the France majority more persuasive. As the majority explained, Stamps addressed a situation in which the new law gave the trial court discretion to strike an enhancement but did not require it to do so, thus placing directly in the trial court's hands the decision whether to alter a term of the plea bargain. Stamps therefore had no occasion to consider the effect on a plea bargain of retroactive application of a law through which the Legislature directly affected a plea bargain by rendering one of its terms invalid. Where the ameliorative change in law is mandatory, the question is not whether the Legislature intended to allow the trial court to alter the terms of a plea bargain but whether the Legislature intended to, in effect, do so directly. As stated in Doe v. Harris (2013) 57 Cal.4th 64, 70, 158 Cal.Rptr.3d 290, 302 P.3d 598 ( Doe ), "the Legislature, for the public good and in furtherance of public policy, and subject to the limitations imposed by the federal and state Constitutions, has the authority to modify or invalidate the terms of an agreement." "[T]he general rule in California is that the plea agreement will be ‘ "deemed to incorporate and contemplate not only the existing law but the reserve power of the state to amend the law or enact additional laws for the public good and in pursuance of public policy...." ’ ( People v. Gipson (2004) 117 Cal.App.4th 1065, 1070 .) That the parties enter into a plea agreement thus does not have the effect of insulating them from changes in the law that the Legislature has intended to apply to them." ( Doe, at p. 66, 158 Cal.Rptr.3d 290, 302 P.3d 598.)
The Hernandez court, and the dissent in France, dismissed the significance of the distinction between a change in law permitting the trial court to make a discretionary decision that could alter the terms of a plea bargain and a change in law necessarily altering such terms because Stamps focused on indicators of legislative intent to alter the rule prohibiting courts from unilaterally altering approved plea bargains. ( Hernandez, supra, 55 Cal.App.5th at p. 957, 269 Cal.Rptr.3d 824 ; France, supra, 58 Cal.App.5th at p. 734, 272 Cal.Rptr.3d 689 (dis. opn. of Pollak, J.); see France, at p. 729, fn. 6, 272 Cal.Rptr.3d 689.) But because the Stamps court was concerned only with legislation permitting the trial court to make a discretionary decision that could alter the terms of a plea bargain, it had no reason to consider distinctions between such laws and laws that directly invalidate a term of a plea bargain. As the France majority noted, the contention that "the operative question is not one of discretion, but merely whether a legislative change gives a court ‘authority to modify the plea agreement by leaving the remnants of the agreed-upon sentence intact without securing the parties’ assent to the modification.’ " "But this contention overlooks Doe, which established that plea agreements generally incorporate the Legislature's reserve power to change the law. ( Doe, supra, 57 Cal.4th at p. 66, 73 [158 Cal.Rptr.3d 290, 302 P.3d 598].) ... Under Doe , it matters very much whether a court makes a discretionary change to a plea bargain (as in Stamps ) or the Legislature makes a change in the law that necessarily affects the bargain (as here)." ( France, at p. 729, fn. 6, 272 Cal.Rptr.3d 689.)
Assembly Bill 1950, like the statute at issue in France , "does not involve Stamps's repeated and carefully phrased concern with the ‘long-standing law that a court cannot unilaterally modify an agreed-upon term by striking portions of it under section 1385 ’ " but rather "has a direct and conclusive effect on the legality of existing sentences pursuant to Estrada. " ( France, supra, 58 Cal.App.5th at p. 729, 272 Cal.Rptr.3d 689, italics in France .)
Moreover, as earlier discussed, Stamps was influenced by the fact that allowing the defendant to have his prior serious felony conviction enhancement stricken but keep the rest of his plea agreement intact would be counter to the goal of the legislation at issue in that case. Applying Assembly Bill 1950 to reduce the duration of a plea-bargained grant of probation does not present any such problem. On the contrary, allowing the prosecution to withdraw from plea deals involving probation terms of more than two years would undermine the Legislature's intent to reduce the number of probationers subject to conditions of probation and risk of incarceration for periods the Legislature deemed unnecessary and deleterious. (See, France, supra, 58 Cal.App.5th at pp. 729–730, 272 Cal.Rptr.3d 689 ["construing Senate Bill 136 to allow the People to withdraw from plea deals containing the affected enhancements could prevent the Legislature from fully realizing its goals of departing from mass incarceration, saving money on prison costs, and keeping families together"]; Harris v. Superior Court (2016) 1 Cal.5th 984, 992, 209 Cal.Rptr.3d 584, 383 P.3d 648 [allowing prosecution to withdraw from plea agreement and reinstate original charges if defendant successfully petitioned for resentencing under Proposition 47 would undermine proposition's purpose of reducing number of nonviolent offenders in prison].)
Finally, we agree with the France majority's conclusion that Stamps should not be read as holding retroactive ameliorative legislation may be applied to plea bargained sentences only if legislative intent for it to do so is express. Disagreeing with Hernandez, France explained, " Stamps did not hold that such express provisions are necessary for a retroactive legislative amendment to authorize a trial court to strike an agreed-upon enhancement while holding the parties to the remaining terms of the plea agreement," only that "the absence of such provisions ‘undercuts’ the notion that the Legislature intended to affect the otherwise applicable and long-standing bar on a trial court's ability to unilaterally modify plea-bargained sentences. ( Stamps, supra , 9 Cal.5th at p. 704 [264 Cal.Rptr.3d 769, 467 P.3d 168].) As Stamps made clear by also analyzing Senate Bill 1393's purpose, the question of how a statute applies to plea-bargained sentences comes down to legislative intent. (See Stamps, at pp. 701–702 [264 Cal.Rptr.3d 769, 467 P.3d 168].)" ( France, supra, 58 Cal.App.5th at pp. 727–728, 272 Cal.Rptr.3d 689.) Furthermore, requiring an express reference to plea bargaining in a statute or its legislative history "would mean that any retroactive ameliorative change in a criminal law that does not contain such an express reference would entitle the prosecution to reopen the plea bargain to add back previously dismissed charges or allegations. But as discussed above, the Estrada presumption of retroactivity arises only when an ameliorative amendment lacks an express retroactivity provision. ( Estrada , supra , 63 Cal.2d at pp. 744–745 [48 Cal.Rptr. 172, 408 P.2d 948].) In essence, then, [requiring an express reference to plea bargains] would create a rule that defendants who plead guilty may benefit from the retroactive operation of any law whose retroactivity depends on the Estrada presumption only if the prosecution assents. Such an approach would drastically undermine the Estrada principle that the Legislature intends a lighter penalty to apply ‘to every case to which it constitutionally could apply’ ( Estrada , at p. 745 [48 Cal.Rptr. 172, 408 P.2d 948] ), particularly as defendants who plead guilty represent the vast majority of convictions ( In re Chavez [(2003)] 30 Cal.4th [643,] 654, fn. 5 [134 Cal.Rptr.2d 54, 68 P.3d 347] ). We see no indication in Stamps that the Supreme Court intended such a result." ( France, supra, 58 Cal.App.5th at p. 730, 272 Cal.Rptr.3d 689.)
Hernandez stated that the silence of Senate Bill 136 regarding pleas "refutes any suggestion the Legislation intended to create special rules for the court to unilaterally modify the plea agreement once the enhancements are stricken." (Hernandez , supra, 55 Cal.App.5th at p. 958, 269 Cal.Rptr.3d 824.)
DISPOSITION
The probation order is modified by specifying that appellant is granted formal probation for a period of two (2) years. In all other respects, the judgment is affirmed.
We concur:
Stewart, J.
Miller, J.